JUDGMENT H.C.P. Tripathi, J. - These four appeals arise out of a common judgment of the learned Sessions Judge, Rampur, and they are being disposed of together. Appellant Pritam Singh was tried and convicted for having committed lurking house trespass, attempt to murder two persons, for being in possession of an unlicensed fire arm and for having committed a murder in the same series of transactions. He has been sentenced to five years' rigorous imprisonment under Section 457, I. P. C., to ten years' and five years' rigorous imprisonment respectively on two counts under Section 307, I. P. C., to two years' rigorous imprisonment under Section 25 of the Arms Act and to suffer death under Section 302, I. P. C. He has come up in appeal against his conviction and sentences and the learned Sessions Judge has made thenusual reference for the confirmation of the sentence of death inflicted upon the appellant on the charge of murder. 2. The accusations in brief against the appellant were that in the night of 16th of August, 1965, he first committed theft of fire arms and ammunitions by breaking open the shop of one Sri R. C. Anand in the town of Rampur and while escaping with the booty he committed the murder of one Banwari a rickshaw puller and attempted to commit the murder of some members of the police party who were trying to apprehend him. 3. The prosecution story in short is as follows. 4. Sri R. C. Anand (P. W. I) runs an arms and ammunition shop under the name and style of J. B. Sales in the Civil Lines of the city of Rampur. In the night of 15th and 16th of August, 1965, at about 1 a.m. he was informed at his house by head con-stable Sardar Beg (P. W. 8) that light was still on in his shop. He immediately rushed to his shop and found that it had been preferred. He checked his stocks and found seven guns, two cartridges cases containing 1162 cartridges, one cycle and his cash box missing. He scribbled in haste a report in which he gave the details of the stolen property and lodged the same at police station Civil Lines at 2.10 a.m. He deposited with the police three locks and the Padlocks of the shop which had been tampered by the miscreants. He scribbled in haste a report in which he gave the details of the stolen property and lodged the same at police station Civil Lines at 2.10 a.m. He deposited with the police three locks and the Padlocks of the shop which had been tampered by the miscreants. A case under Section 457, I. P. C. was immediately registered in the general diary of the police station against unknown persons and as fire arms and ammunition had been stolen the various police stations and outposts in the city were alerted to keep a watch on suspicious characters and close the outlets. Om Pratap Singh, Station Officer of the police station Civil Lines, immediately started towards the shop of Sri Anand. When he came near Jolly Radios, almost midway between the police station and the preferred shop (J. B. Sales) , he was informed by a constable that he suspected the presence of some persons behind the Radio shop. Om Pratap Singh went to the back side of the Radio shop most of which was covered with bushes. 5. There was a tin shed nearby lighted by an electric bulb. He flashed his torch towards the bushes and noticed the presence of two Sikhs who were armed with guns. When he challenged them one of the miscreants fired at him. Om Pratap and his party took shelter of the wall and returned to the front verandah of the shops. The two miscreants came to the main road and tried to run away on their respective cycles. Om Pratap fired his revolver in air whereupon they threw down their cycles and one of them returned the fire. The miscreants then ran towards the police station Civil Lines pursued by Station Officer Om Pratap and his men. After some time they took a turn on the road which connects the Civil Lines to the city of Rampur which lies at a distance of i f miles from the police station. The road is lighted all along with tube lights. While chasing the miscreants Station Officer Om Pratap reached the roadways station and from there sent telephonic messages to Kotwali and Ganj Police stations for sending police reinforcement and for taking steps for cornering the miscreants. The road is lighted all along with tube lights. While chasing the miscreants Station Officer Om Pratap reached the roadways station and from there sent telephonic messages to Kotwali and Ganj Police stations for sending police reinforcement and for taking steps for cornering the miscreants. In response to his message to police station Ganj Sub-Inspectors Chandradhar Bajpai and R. P. Gour accompanied by two constables proceeded to Bilaspur Gate in order to close the outlet on that side. They hired two rickshaws of Banwari and Abid and on their way were informed by a truck driver that two Sikhs were running towards Shahabad Gate from the side of Civil Lines and some police men were pursuing them. Sub-Inspector Bajpai and his party then turned towards Shahabad Gate and when they were proceeding towards Civil Lines on Rahe Murtaza (the road which connects it with the city) they saw the appellant crossing the road from the western side and another Sikh who had already crossed the road at some distance ahead of him. They jumped down from their respective rickshaws and charged the appellant who was still on the road. Appellant then turned towards the police party and fired with the gun which he was carrying with him. Sub-Inspector Bajpai was hit on his left chest while Banwari the rickshaw puller who was standing close by received the full force of the fire in his front and slumped dead on the ground. Sub-Inspector Bajpai who had come close to the appellant hit him with his danda and the appellant fired again injuring his right forearm. Meanwhile the appellant was caught by Sub-Inspector Gour and was given another blow by a constable. Two very light pistol shots were also fired. By that time Station Officer Om Pratap and his men reached there and by their assistance the appellant was captured and overpowered. 6. Sri R. P. Mathur, Superintendent of Police, Rampur, who had received information of the theft and the chase of the mis--r creants being given by the police reached the scene and found the appellant surrounded by members of the police force, a dead body lying there and Sub-Inspector Bajpai in an injured condition. 6. Sri R. P. Mathur, Superintendent of Police, Rampur, who had received information of the theft and the chase of the mis--r creants being given by the police reached the scene and found the appellant surrounded by members of the police force, a dead body lying there and Sub-Inspector Bajpai in an injured condition. A D. B. B. L. gun Exhibit III having two fired cartridges in the barrel and a cartridge belt having 16 live cartridges which were with the appellant at the time of his arrest were snatched away and on his pointing out in the presence of Sri Mathur and other per-sons, five guns, two ammunition boxes containing 500 and 380 cartridges, one cash box with J. B. Sales painted on it and a bag containing a knife, a pant, a shirt and an iron bar were recovered from the precincts of a mausoleum nearly and a re, covery memo Exhibit Ka 5 was prepared in the presence of the witnesses. A number of discharged cartridges were also taken in possession from various places on the road of the chase and the appellant was brought to the police station and a case under Sections 302, 307 and 25 of the Arms Act was registered against him in the general diary. 7. Sub-Inspector Bajpai was medically examined by Dr. V.P. Jain (P. W. 9) during the same night at 4.30 a.m. and the following injuries were found on his person: 1. Lacerated gunshot wound 54" x 1" x not probed on left side of chest, in the outer and upper part under the armpit, in the direction of ribs, with scorched margins. The wounds of entry and exit were communicating and forming a single lacerated wound. 2. Lacerated gunshot wound 8i-" x 5" x bone deep on the back of right forearm in its middle, extending from 2" below elbow to 2" above the wrist. The margins were lacerated, inverted and scorched. 8. The duration of these injuries was fresh and injury No. 2 which had resulted in the fracture of the upper end of the radius was grievous. 9. Sub-Inspector R. P. Gour was also examined by Dr. V.P. Jain and a contusion 2" x 12" on the right side of his chest with a swelling in an area of 4" x 3" was found on his person. 10. 9. Sub-Inspector R. P. Gour was also examined by Dr. V.P. Jain and a contusion 2" x 12" on the right side of his chest with a swelling in an area of 4" x 3" was found on his person. 10. The post mortem examination on the dead body of Banwari was conducted by Dr. J. B. Sakesena (P. W. 13) at the district hospital, Rampur, on 16-8-1965 at 2.30 p.m. and ante mortem gun shot injuries on front of chest, abdomen, neck, left upper and forearm, right forearm, left side of chin, left upper eye-lid and left lip near head line were found on it. There was a slight discolouration present round all the wounds. On internal examination both the lungs, pleura, heart and pericardium were found injured and nine gun shots were found lodged in the various part of the body. Death in medical opinion was due to shock and haemorrhage due to gun shot injuries to internal vital organs. 11. It will be noticed that according to the prosecution seven guns had been stolen from the shop of J. B. Sales out of which five were recovered at the pointing of the appellant, one from his hand at the time of his arrest and one during the course of investigation was found lying in the leechi grove in front of the court of A. D. M. (J) . 12. At the trial, appellant pleaded not guilty and denied his arrest and various recoveries of fire arms and ammunition from him or at his pointing out as alleged by the prosecution. According to him lie was an absconder from Punjab and he was arrested on the 14th of August, 1965, at Delhi. He was first brought to Moradabad and then on the 15th of August, 1965, he was brought to Rampur and was detained at police station Civil Lines. Some incident took place during the following night and he was falsely implicated in this case. 13. He did not examine any witness in defence and could not give any particular reasons for his alleged false implication. 14. On the basis of evidence led by the prosecution the learned Sessions Judge was of opinion that the various charges levelled against the appellant had been established beyond reasonable doubts. Accordingly he convicted and sentenced him as has been stated above. 15. 14. On the basis of evidence led by the prosecution the learned Sessions Judge was of opinion that the various charges levelled against the appellant had been established beyond reasonable doubts. Accordingly he convicted and sentenced him as has been stated above. 15. Having heard the learned counsel for the appellant at some length and having considered the evidence on record and the attendant circumstances of the case we are of opinion that the conviction of the appellant as recorded by the trial Judge on various charges is fully justified and the sentences awarded to him thereunder do not call for interference. 16. Head Constable Sardar Singh (P. W. 8) has stated that when he was patrolling in the Bazar of Civil Lines during the night of 15th and 16th of August he noticed light in the shop of J. B. Sales and informed its owner Sri R. C. Anand accordingly at his house. Sri R. C. Anand thereafter came to the shop and found the locks broken. 17. Sri R. C. Anand (P. W. 1) says that when he came to the shop he found its doors broken, his seven guns and a large number of ammunition as detailed in his report to the police, the cash box, the cycle and some leather belts missing. He identified in court the guns Exhibits 1 to 7, the cash box Exhibit 10, the cycle Exhibit 11 and leather belts Exhibits 12 and 13 as the property which had been stolen from his shop. 18. Station Officer Om Pratap (P. W. 2) , Abid Raza a rickshaw puller (P. W. 6) and Sri R. P. Mathur, Superintendent of Police (P. W. 10) have testified that the appellant took the police party to the Maqbara and produced five guns, two cartridge cases containing a large number of cartridges and one cash box, a jhola having a knife, a pant, an iron bar and some other articles as detailed in the recovery memo Exhibit Ka 5 in their presence. Murad Ali (P. W. 5) who was following the police party with his rickshaw and Sardar another rickshaw puller (P. W. 11) who was also passing on the road have testified to the recovery of the gun and some cartridges from the person of the appellant. Murad Ali (P. W. 5) who was following the police party with his rickshaw and Sardar another rickshaw puller (P. W. 11) who was also passing on the road have testified to the recovery of the gun and some cartridges from the person of the appellant. The various fire arms and ammunition and the cash box which were recovered either from the person of the appellant as testified by some of these witnesses or at his pointing out from behind the Maqbara as proved by others tallies with the description given in the first information report of Sri Anand of the stolen fire arms and ammunition and cash box from his shop and in view of their identification by him in court as his own there is no room for doubt that it was the appellant who had removed them either by himself or accompanied by some others and a charge under Section 457, I. P. C. is fully established against him. 19. Sub-Inspector Chandradhar Bajpai and R. P. Gour (P. Ws. 3 andli) both of whom had been injured, Abid Raza (P. W. 6) whose rickshaw had been engaged by them for their journey, Murad Ali (P. W. 5) who was following the police party on his own rickshaw, Sub-Inspector Udai Bir Singh (P. W. 12) and Station Officer Om Pratap (P. W. 2) have testified that when Sub-Inspector Bajpai challenged the appellant to stop who was running on the road the appellant turned round, shot at him with his double barrelled gun which hit him on his chest and killed Banwari at the spot and when Sub-Inspector Bajpai gave him a danda blow he again shot at his hand but by that time two other members of the police force were able to overpower and disarm him. Sub-Inspectors Bajpai and Gour, who had received injuries, have given a graphic description of the occurrence. Bajpai says that when his party reached near the Kunda culvert he saw the appellant crossing the road from the eastern side while his companion another Sikh had already crossed it. There was an electric light on the road and he noticed that both of them were armed with guns. He challenged them to stop, jumped down from the rickshaw and ran to arrest them. The appellant who was near the witness turned round and fired at his party. There was an electric light on the road and he noticed that both of them were armed with guns. He challenged them to stop, jumped down from the rickshaw and ran to arrest them. The appellant who was near the witness turned round and fired at his party. He got the shot on his left chest and somebody cried out from behind that Banwari had died. 20. He hit the appellant with his danda on which he fired again and hit him on his right hand. The witness shouted "catch him before he loads the gun" on which Sub-Inspector Gour caught hold of the accused and constable Deo Prakash hit him with a lathi. Meanwhile there was a light produced from the shots fired from a very light pistol and somebody cried out that they were coming for help and Station Officer Om Pratap Singh and Udai Bir Singh Sub-Inspector with their party reached the spot and helped in capturing and disarming the appellant. Sub-Inspector R. P. Gour and the two rickshaw pullers named above have corroborated the testimony of Sub-Inspector Bajpai in all its essential particulars. 21. The testimony of these witnesses is free from blemish and rings true. It leaves no room for doubt that it was the appellant who had repeatedly fired on the police party killing Banwari at the spot and causing serious gun shot injuries to Sub-Inspectors Bajpai and Gour when they had attempted to apprehend him at the road. The testimony of these witnesses finds corroboration from the evidence of Om Pratap Singh and Udai Bir Singh (P. Ws. 2 and 12) and also from the testimony furnished by Sri Mathur, Superintendent of Police, (P. W. 10) who had found Sub-Inspector Bajpai in an injured condition and the appellant in the custody of the police when he had reached the spot. 22. All the witnesses have stated that the other Sikh who had accompanied the appellant had already crossed the road and was at a distance of 50 or 60 paces from the police party. The medical evidence shows that the gun shot wounds of Banwari had a black discolouration round them and Bajpai had received the second shot on his right arm with which he was trying to wield the danda against the appellant. The medical evidence shows that the gun shot wounds of Banwari had a black discolouration round them and Bajpai had received the second shot on his right arm with which he was trying to wield the danda against the appellant. It Is, therefore, obvious that the firing was resorted to from a close range which could have been done not by the other Sikh who was at a distance of 50 or 60 paces from the police party but by the appellant who was near them. Thus we find that the medical evidence also lends corroboration to the statement of the witnesses that it was the appellant who had repeatedly indulged in firing at the police party. 23. The fact that the appellant had indulged in firing repeatedly from his gun in a reckless manner on the police party which was chasing to apprehend him indicates that he was prepared to go on doing the same irrespective of its consequences to other. According to these witnesses he had aimed his gun from a close quarter on Sub-Inspector Bajpai who was almost grappling with him and it was only an accident that Bajpai received only a part of the charge and the rest struck down the poor rickshaw puller who was behind him. It must, therefore, be held in the circumstances of the case that the appellant had intended to cause the death of the Sub-Inspector who was trying to apprehend him. 24. It was urged on behalf of the appellant that as the appellant had no desire to commit the murder of the rickshaw puller and possibly wag not conscious of his presence behind Sub-Inspector Bajpai who was aimed at by him the conviction of the appellant under Section 302, I. P. C. is not sustainable in law. We are unable to agree with this contention. 25. As we have held above that when the appellant fired at Sub-Inspector Bajpai he intended to cause his death, if by that act he caused the death of another person whose death he neither intended nor knew to be likely to be caused, the offence committed by him will be a murder of the first degree in view of the provisions of Section 301 of the Indian Penal Code. 26. 26. A similar view was taken by a Division Bench of this Court as early as 1916 in the case of Emperor v. Jeoli, I.L.R. Alld. Series, Vol XXXIX, 161 wherein it was held that where a person intending to kill one person kills another person by mistake, he is as much guilty of murder as if he had killed the person whom he intended to kill. 27. In view of the aforesaid discussion of the evidence and circumstances of the case it is obvious that the various charges levelled against the appellant have been established by cogent and reliable evidence and he has been rightly convicted and sentenced thereunder by the trial court. 28. We are unable to agree with the contention of the learned counsel for the appellant that the appellant does not merit the extreme penalty of law on the change of murder. He is a desperate character who had repeatedly fired on a police party killing an innocent person. He had almost reached Sub-Inspector Bajpai to the door of death. In these circumstances there appears no justification for us to interfere with the discretion of the trial Judge in the matter of the sentence. 29. In the result the conviction and sentences of the appellant under various counts as recorded by the trial court are confirmed and his appeal is dismissed. The reference made by the learned Sessions Judge under Section 374, Cr. P. C. is accepted. The sentence of death inflicted upon the appellant shall be carried out in accordance with law. 30. Before parting with this case we must observe that Sub-Inspector Chandradhar Bajpai showed commendable courage in apprehending a desperate character who was armed with a deadly weapon, at the risk of his life. Even after having received a gun shot wound on his chest, he did not falter, gave a danda blow to the armed criminal, thereby inviting another gun shot on him, and went on exhorting his companions to pounce upon the miscreant. Let a copy of this judgment be sent to the Chief Secretary, Government of Uttar Pradesh. Appeal dismissed.